The Complainant is Allstate Insurance Company of Northbrook, Illinois, United States of America, represented by Mintz Levin Cohn Ferris Glovsky and Popeo, PC, United States of America.
The Respondent is PrivacyP / Purple Bucquet of Moergestel, the Netherlands and Ciudad de Panama, Panamá, respectively. 2. The Domain Name and Registrar
The disputed domain name is registered with Power Brand Center Corp. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 3, 2011. On January 4, 2011, the Center transmitted by email to Power Brand Center Corp. a request for registrar verification in connection with the disputed domain name. On January 4, 2011, Power Brand Center Corp. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 5, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 5, 2011.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 6, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 28, 2011.
The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on February 10, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is the owner, amongst others, of the following trademark registrations:
TRADEMARK
REG. NO.
SERVICES
DATE OF REGISTRATION
COUNTRY
ALLSTATE
0717683
Underwriting of the following types of insurance: life, annuity, accident, and health.
June 27, 1961
United States
ALLSTATE
0761091
Business of making, writing and underwriting of insurance.
December 3, 1963
United States
ALLSTATE (and Design)
0840187
Insurance underwriting services.
December 5, 1967
United States
ALLSTATE.COM
3164784
Banking; loan financing; investing and administering funds of others, investment advisory services, investment brokerage; financial planning; mortgage services, namely mortgage lending; insurance services, namely, writing and underwriting of casualty insurance, property insurance, automobile insurance, liability insurance, health and long-term care insurance, disability insurance, life insurance and annuities and providing ancillary services thereto, namely, insurance administration and insurance claims adjustment; commercial insurance underwriting services, namely liability business interruption, and business property insurance and providing ancillary services thereto, namely insurance administration and insurance acclaims adjustment; financial sponsorship of athletic events; financial sponsorship of local charitable organizations; motor club services, namely, providing bail bonding for motorist; providing financial reimbursement of legal defense services related to moving violations.
October 31, 2006
International Registration
The disputed domain name was registered on March 29, 2004. 5. Parties’ Contentions A. Complainant
The Complainant argued the following:
1. That Complainant is the largest publicly held insurer in the United States.
2. That since Complainant’s incorporation in 1931, it has become a well-established and well-known insurance company in the United States.
3. That Complainant has been using its trademark ALLSTATE since 1931.
4. That Complainant received its first federal trademark registrations for ALLSTATE in 1961.
5. That Complainant has devoted hundreds of millions of dollars to advertising and promoting its services in the United States under the ALLSTATE trademark.
6. That Complainant has registered over one thousand ALLSTATE-based domain names worldwide such as: registered in May 1995, registered in July 1998, and registered in July 1997. 1. Identical or Confusingly Similar
1. That the registration of a trademark is prima facie evidence of validity, which creates a rebuttable presumption that the trademark is inherently distinctive.
2. That incorporating the entirety of a mark into a domain name is sufficient to establish that a domain name is confusingly similar to the registered mark.
3. That the use of a famous or well-known mark in a domain name is likely to cause confusion, mistake, or deception since Internet users are likely to believe that the trademark holder authorized or is controlling the disputed website.
4. That other UDRP Panels have determined that the ALLSTATE trademark is famous (and cites Allstate Insurance Company v. Domain Supermarket,WIPO Case No. D2009-1175).
5. That Respondent´s domain name includes a common typographical error of Complainant’s ALLSTATE trademark.
6. That “typosquatting” is a form of cybersquatting in which a respondent registers and uses a domain name that is a common misspelling or predictable mistyping of a distinctive mark in order to take advantage of typographical errors made by Intenet users seeking the Complainant’s commercial website.
7. That typosquatting takes “unfair advantage” of Complainant’s well-known ALLSTATE trademark and associated business reputation.
8. That the disputed domain name features the ALLSTATE trademark, but simply adds an additional letter “a” to change the mark to “allsatate”.
9. That the letter “a” is located next to the letter “s” on the computer keyboard. “Allsatate” is a predictable common misspelling of the ALLSTATE trademark. 2. Rights or Legitimate Interests
1. That redirecting Internet users to a third-party website implies that Respondent is receiving compensation for such redirection.
2. That Respondent is not making a legitimate noncommercial use of the disputed domain name, but instead misleading and diverting consumers for commercial purposes.
3. That using a confusingly similar domain name to divert Internet users to a third-party site that offers products or services in competition with Complainant is not a bona fide offering of good or services.
4. That Respondent is not commonly known by the ALLSTATE trademark or by any of the terms that comprise the disputed domain name.
5. That any adoption of the confusingly similar “Allsatate” name was done with complete knowledge of Complainant and its rights, and with an intent to trade off Complainant’s goodwill.
6. That Respondent’s use of a privacy service provides evidence that Respondent is attempting to hide his/her activities from scrutiny.
7. That Respondent has used a privacy service to shield his/her identity in registering a domain name that wholly incorporates a common typographical error of Complainant’s famous ALLSTATE trademark. 3. Registered and Used in Bad Faith
1. That Respondent’s use of a common typographical misspelling of the ALLSTATE trademark in its domain name causes likelihood of confusion.
2. That Respondent is using a well-known trademark and there is no legitimate use of the mark in the domain.
3. That Respondent registered the disputed domain name in bad faith since it is a common typographical misspelling of and is confusingly similar to Complainant’s well-known ALLSTATE trademark and there is no legitimate use.
4. That given Complainant’s widespread use and promotion of its trademark, there can be no doubt that Respondent is aware of Complainant and its trademark rights.
5. That the “practice of typosquatting” is evidence of bad faith in itself.
6. That Respondent is using the disputed domain name for commercial gain by diverting Internet users to an unrelated third-party, and benefiting from the likely confusion between Complainant’s trademark and the disputed domain name.
7. That such exploitation of the reputation of trademarks to obtain revenue from the diversion of Internet users is an indication of bad faith according to numerous previous UDRP decisions. A. Identical or Confusingly Similar B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with the Policy, paragraph 4(a), the Complainant must prove that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights, and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name, and
(iii) The disputed domain name has been registered and is being used in bad faith.
In the administrative proceeding, Complainant must prove that each of these elements are present.
As Respondent has failed to submit a Response to the Complainant’s contentions, the Panel may choose to accept as true all of the reasonable allegations of the Complaint, Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk,WIPO Case No. D2002-0487. A. Identical or Confusingly Similar
The Complainant is the holder of the registered trademark ALLSTATE. According to the affirmations and evidence submitted by Complainant, which have not been contested by Respondent, the trademark ALLSTATE has been in use for decades. Said mark has also been publicized extensively.
The disputed domain name is a common misspelling of the trademark ALLSTATE. The letter “a” is adjacent to the letter “s” on normal keyboards. This is no coincidence. Typosquatting is the practice of registering domain names consisting of normal spelling and/or typing errors. This practice generates confusion among Internet users who are misled when exposed to the disputed domain name. (See Expedia, Inc. v. Alvaro Collazo,WIPO Case No. D2003-0716, citing in turn VeriSign, Inc. v. Onlinemalls,WIPO Case No. D2000-1446; Red Bull GmbH v. Grey Design,WIPO Case No. D2001-1035; Playboy Enterprises International, Inc. v. SAND WebNames For Sale,WIPO Case No. D2001-0094; NetWizards, Inc. v. Spectrum Enterprises,WIPO Case No. D2000-1768; Telstra Corp. Ltd v. Warren Bolton Consulting Pty Ltd,WIPO Case No. D2000-1293).
The disputed domain name is inherently confusingly similar to the trademark ALLSTATE, graphically and phonetically, because it consists of the trademark ALLSTATE per se, with the addition of a letter “a” in the middle of said trademark.
The addition of the generic top-level domain “.com” is immaterial for purposes of the Policy. To carry into effect the confusing similarity analysis, a panel usually does not take into account the generic top-level domain (gTLD) “.com”, because such gTLD has no legal significance. (See Diageo Brands B.V., Diageo North America, Inc., and United Distillers Manufacturing, Inc. v. iV a.k.a. Alec Bargman, WIPO Case No. D2004-0627).
Therefore this Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark ALLSTATE. The first requirement of the Policy has been fulfilled. B. Rights or Legitimate Interests
The following are examples of circumstances where a respondent may have rights or legitimate interests in a disputed domain name:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. (Policy, paragraph 4(c)).
Respondent has not submitted evidence to show the existence of use or preparations to use the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, Complainant’s submission, not contested by Respondent, shows that Respondent is using the disputed domain name to divert Internet users to third party sites offering services in competition with those of Complainant. This cannot be in good faith, The Paragon Gifts Holdings, Inc. v. Click Cons. Ltd, WIPO Case No. D2007-0304.
Respondent has not proven to have been commonly known by the disputed domain name. Complainant owns a substantial number of trademark registrations that cover ALLSTATE. This trademark is heavily publicized in the United States. Therefore, there is no evidence at hand that Respondent could have chosen or used the disputed domain name in a legitimate manner.
The use of the disputed domain name that Respondent is making is commercial, illegitimate, and cannot constitute fair use, because Respondent has particularly chosen to use the disputed domain name to divert Internet users to sites with content of competitors of Complainant.
Therefore, the Panel finds no rights or legitimate interests on the side of Respondent. The second element of the Policy has been met. C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances shall be evidence of registration and use in bad faith:
(i) “circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
Complainant’s Complaint and evidence show that Respondent has intentionally attempted to attract, for commercial gain, Internet users to a third party online location, by using a common misspelling of the trademark ALLSTATE, thus creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of said third party site that offers competing insurance services. This constitutes bad faith under paragraph 4(b)(iv) of the Policy. See Beckman Coulter, Inc. v. Suzan Wilson, WIPO Case No. D2010-1163; MasterCard International Incorporated v. Dhe Jonathan Firm, WIPO Case No. D2007-0831).
Therefore, the third element of the Policy has been met. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Kiyoshi Tsuru
Sole Panelist
Dated: February 25, 2011
Full & Egal Universal Law Academy